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Legal groups sound alarm over possible change to how Ontario government appoints judges

Legal groups are expressing alarm at possible changes to the way the provincial government appoints judges in Ontario.

Attorney General Doug Downey told a legal conference last week that the current process of appointing judges and justices of the peace — who are first screened and recommended by independent advisory committees — is “flawed” and that he is exploring reform.

The possibility of major changes has led to concern from legal groups and questions as to why the process is even being revamped. They point to the current system as one that has delivered a capable and diverse bench of judges and justices of the peace, and also ensures the government of the day can’t appoint whomever it wants to a judicial position.

An independent advisory committee made up of judges, lawyers and members of the public screen applications for judges and then recommend at least two candidates per vacancy to the attorney general for appointment. He is required to choose from this shortlist, but is also entitled to reject it and ask the committee for a new list.

Downey suggested in a speech last week to the Federation of Ontario Law Associations that he would like to receive an expanded list of candidates from the committees.

The Advocates’ Society, a legal advocacy organization, told Downey in a letter this week that it strongly supports maintaining a system with a shortlist of recommended candidates.

“First, it ensures that the most qualified candidates are chosen and that a high standard of excellence is achieved,” reads the letter from society president Scott Maidment. “Second, by limiting the size of the list and requiring that the appointment be made from the list, the risk of real or perceived political partisanship is greatly reduced.

“We understand that steps to reform the current process and remove this key feature may be imminent.”

Downey’s office did not respond to a question from the Star as to when changes may be proposed, but said the government will be consulting with players in the justice system.

“Some things will not be on the table,” Downey’s spokesperson, Jenessa Crognali, told the Star Thursday. “The existence of appointment advisory committees will not change, the statutorily binding nature of the committees’ recommendations will not change, and the mandatory qualifications for judicial candidates will not change.”

While the government has yet to make public a full account of changes it would like to make, legal associations and the Ontario Court of Justice itself have said the appointment process is already considered one of the best in the world and that any changes would first require extensive consultation.

“No one has complained about the appointments process,” said Lori Anne Thomas, president of the Canadian Association of Black Lawyers. “Even with the change of government, the appointments did not change, they were still neutral people who were very qualified.”

The Ontario Court of Justice is one of the busiest levels of court in the country, hearing the bulk of criminal cases in the province as well as family and child protection matters and non-criminal cases known as provincial offences.

“Ontario’s judicial appointment process is recognized nationally and internationally and remains the gold standard for the appointment of an independent and qualified judiciary,” the court said in a statement to the Star. “Any changes to the current well-established and well-respected judicial appointment processes should be informed by meaningful public consultation.”

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Aside from assessing things like professional achievements and community involvement, the judicial appointments advisory committee is also required by law to recognize the “desirability of reflecting the diversity of Ontario society in judicial appointments” when deciding who to recommend for appointment, according to the Courts of Justice Act.

“It will not improve diversity. It will not improve the Ontario Court of Justice. It is a step in the wrong direction,” Michael Lacy, former president of the Criminal Lawyers’ Association, said of possible changes to the process.

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